Wanted: A Digital Rights Policy

Recent initiatives by Google, particularly those in conjunction with several major research libraries, have made it clear that almost every publisher, and certainly every trade publisher, has failed to establish policies that are needed for 21st-century content, regardless of the form in which it originated and is sold. Lacking input from publishers, Google and the libraries decided what could be scanned and what could be done with the scans. Some publishers say they're violating copyright; ultimately, the courts will decide. But in the absence of any stated policies about what can be scanned, and by whom; what can be searched or archived; how much of a book can be "returned" in response to a search; and, indeed, what, if any, digital rights are "conveyed" by ownership of a hard copy book, is it surprising that Google and the libraries are making up their own?

From Google and any library's point of view, when content or information moves from physical to digital, its value jumps from nearly nothing to very useful. The digital content is so valuable, Google and the libraries are willing to accept high costs and undertake massive efforts to digitize intellectual property. Publishers didn't anticipate that they would need a digital policy to govern books they issued only in physical form—but they do. Nor did they foresee needing a digital policy for situations where they expect no payment—but they do.

As book publishing consultants, we believe most publishers and most books, especially in the trade marketplace, will benefit from being searched by Google, Yahoo and other search engines. This is also true for many books if they are able to be searched by libraries' own search-and-retrieval systems. But we also know that there is some book-published material that would be so valuable if available online, that having whole pages (rather than just snippets) returned could actually cost sales. And some publishers understandably panic at the idea that one book could be scanned and end up on a university library's network for every student and professor to read without further payment. Or worse, that sharing relationships among libraries would mean that one book could satisfy an entire university system, or a whole state.

Regrettably, no publisher we know of has a clear policy on all of this. One CEO of a major house told us he has no problem with a library mounting a digital copy of a book it has bought, although another said, "I do!" CEO #1 also is okay with an individual keeping an MSWord file of a book he has purchased on his own computer's hard drive; CEO #2 is not. Divergent opinions abound, but no publisher we know has converted opinion to policy. We're not saying every publisher must have the same policy, but we are saying every publisher must have a policy.

One idea is that a publisher could declare that every book sold grants the buyer a free option for strictly limited online use, a grant that is easy to monitor in the library market but might eventually be extended to consumers. This policy would establish the precedent that it's the publisher, and not a library or technology firm, that defines a work's ultimate use.

We see the dangers inherent in a world where, as Stewart Brand said, "information wants to be free" and, regardless of a publisher's preferences, it often is. (But publishers, take heart: Brand's full quotation is, "Information wants to be free... and information wants to be expensive.") We also understand that Google, the libraries and the entire Internet-oriented world are balancing many ideas and concepts, and that however conscious they are of publishers' economic health, publishers will feel their interests aren't being considered. But publishers themselves need to be the ones worrying about that. Developed, articulated policies about digital licensing are a much better way to protect publishers' interests than lawsuits against marketing channels. The next decade or two will see the relationship between digital and printed content dramatically recast. Publishers can embrace that relationship, or watch it—and themselves—fall apart.